Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-10-31
mitted in making and publishing the


sffidayit for attachment, which exception
was sustained. Plaintiff refused 10
amend and judgment was rendered, dis
missing the suit, to which ruling of the
court plaintiff excepted and gave notice
Of an appeal. Held: That leaving out
of consideration SO much of the petition as
comes fairly within the purview Of the ex-
captions sustained it appears from the re-
mainder Of the petition that cause OF
action is substantially stated. Reversed
and remanded. Acker j.
Texas and Pacific Railway Company vs..
J Virginia Ranch, Land and Cattle Com
I pany; appeal from Callahan. This Is g
suit brought against the appellant 20 re-
cover $500, the value of q jack, alleged
to have been killed by appellants loco
motive and train. 1t Is alleged in the
petition that the plaintiffs company is 8
body duly and legally incorporated by
and under the laws of the state of
Texas" Held: That the manner of It's
corporation is sufficiently set ont in the
petition. Petition alleged the ipjury to
the animal occurred in March. The
proof showed that it occurred in the fol-
lowing August. Held: That such a
variance between the proof and allega ion
OF no consequence. Judgment affirmed.
Acker, ]
H J.&J.F Hopkins VS.. Ferdinand
Nigel; appeal from Medina. Appellee
brought this action against appellant in
trespass, to try title to TWO tracts Of land
of $40 acres each, IN Medina county, on
February 20, 1888. Plaintiff flied an
amended petition September 6, 1888
april 4, 1884, defendant answered by gen.
eral demurrer, general denial and plea of
not guilty. The case WAS called for trial
March 80, 1885, and neither the deteud-
ant nor his counsel being present, the
plaintiff announced ready for trial. De
fendent's demurrer was oYerruled, and
the trial proceeded by the Court, and
| judgment rendered in favor of plalnGf
for the lands. April IL, 1885, the day. on
which Court adjourned for the term, the
defendant fled mis- motion for o new Trial,
supported by his affi tevit alleging that
he employed counsel to represent
him ia the suit, and they appeared
for him and fled his an
swer: That ne relied upon them to rep
resent him st the trial. On March %,
1886, two days before judgment Was
rendered in the case, his attorneys wrote
him letter from San Antonio adore ssed
to MIN at his tome at Devine in Medina
county, informing him that they Gould
not further represent him in the case.
Appellant was under process to appear at
the District court Of Caldwell county,
then in session. Ga receipt of this letter
from his attorneys, he wrote letters TO
the District Judge and District Clerk ex-
planning his situation and requesting that
they employ an attorney for him if the
case could not be contiuued, and went,
in obedience to the process of the court
of Caldwell county, where he was detained
until the 8.h d&y Of April, wneR
he proceeded as rapidly as pos
sioIe to Castrovile and pro-
cured counsel to make his
application for new trial. Appellant also
alleged in his application TOR new trial
that ne "hss the legal title to said Ia
! and Can present good defense TO the
. claims of plaintiff" Motion for new
trial overru!ed. Held: Error. The ap-
plication shows "diligence and merIto-
rlous defence" Reversed and remanded
Acker, j.
The Cult, Colorado and Santa Fe r ail-
; weY Company vs.. james Benson; aP-
peal from Bosque. Plaintiff claimsd that
defendant negigently permitted grass
!, and combustible material to accumulate
on it's rignJ of way which was Igniteasb
: sparks frow is engine aud so burning
| his pasture-grass and come posts, lsyine
mis- damages st 500 80 for whicr
he sued and recovered judemen
in the court below for amount
sued for. It is admitted that the Are
caught from spark emitted from The
! smUkestack of defendants locomotive
! II is also admitted that said engine wat
, at that time provided with the best spsrl
arrester known, and that same was il
, good repair. Held: That when plaintiff
J established the fact that the fire was 9,
cause {, and that he was thereby injured
: the onus was upon the defendant to show
! by affirmative proof that there WAS nc
negligence on its part in causing the fire
but that this demand Of the law was
J satisfied when the company showed by
undisputed evidence that iG vas using a.
the time the best and most approved
mechanical appliances to prevent the
escape OF fire from it's engine. And that
therefore, il the defendant was guilty
OF negligence st al, it was
in permitting the accumulation Of COM
bustible matter on It's right of Wey, which
being q fact to be determined by tae Jury
: or the judge trying 1t without jury, the
finding on that point by the court below
will not be disturbed by this court. The
judgment is, therefore, affirmed. Col
lard, J.
International and Great Northern Rail
road Company VS.. c.. S. Cook; appeal
from Hays. Appellee brought this sui
, against appellant to recover damages fol-
} personal injuries received by him by be-
, ing thrown from and run over by appel
lant's hsna-csr, caused by the negligence
: of appellants servants. The proof shows
that appellee was justice Of the peace,
residing at San Marcos, Hays couatgssstasi
colored man was found deada Re "
miles south of San Marcos near appel
} lants tracks, that appellee with the con-
sent Of and at the invitation of appel
J lcnt's trainmaster for that division, with
} jury cf inquest boarded handcar, and
, with the section boss and his men pro-
, ceeded to the place where the colored
} man was found dead to hold an inquest
When they arrived at the place they found
that the deceased had been removed, and
: being informed that he had been seen at
! Hunter few miles below, they boarded
: the car again and proceeded TO that place
to ascertain, If possible, facts which
might lead to the cause of the death OF
the deceased. From the evidence 1t was